Honoring Honduras’ Constitution

By Sam Barr | July 10, 2009 at 1:14 pm

Over at The Plank, GW law professor David Fontana digs into a layer of constitutional complexity often missed in discussion of the crisis in Honduras.

He writes, “What is taking place in Honduras is actually a debate over an old and difficult question: Can a democratically enacted change to a constitution be itself unconstitutional?”

Here’s his quick run-down of the facts: “The crisis started when Zelaya called for a vote to determine whether or not a convention should be held to amend the constitution–and allow him to serve another term. The problem was that Article 239 of the Honduras constitution clearly prohibits a president from serving more than one term and indicates that anyone who tries to amend Article 239 should be removed from office and disqualified from performing any public responsibilities for ten years.”

Fontana then canvasses two opposing views on the nature of constitutions. On the one hand, there is the view that a constitution ought to admit any and all democratically enacted changes, even ones that contradict the existing constitution. This is “the American notion that a constitution should be amendable in just about any direction.” But then there’s the idea of putting up substantive roadblocks to certain kinds of amendments; Germany, for instance, “prohibits any amendments violating foundational norms like human dignity,” no matter how many votes they have.

I have no quarrel with this characterization of the two perspectives. But I think Fontana is misguided in saying that “where you come down on Honduras really depends on which view of constitutions you favor.” It seems to me that the people of Honduras already made a decision regarding the type of constitution they favor, and they apparently wanted one along the lines of the German model: they wrote into their supreme law a substantive barrier to a certain kind of amendment. It is not that all constitutions are either like America’s or like Germany’s. Both countries have valid and workable constitutional systems, and we cannot nullify the Honduran system by saying, as Fontana does, that Article 239 “flies in the face” of the American notion of constitutions. What distinguishes Zelaya’s attempt to circumvent Article 239 from an attempt to, say, deprive Montana of its two senators without its approval, or violate “human dignity” in Germany?

Indeed, it is interesting that Fontana mentions how “the rise of the Nazis demonstrated how a determined group could exploit the democratic process to horrific ends.” That certainly explains Germany’s constitutional system. But does it not also explain Article 239? Might Honduras not have consciously chosen to guard against this particular evil, forgoing the good that can, sometimes, be achieved by an infinitely malleable constitution? In the context of Latin American history, guarding against populist but ultimately undemocratic strong-arming was probably a good idea. Which is not to pronounce a verdict upon the actions of the coup-launchers, but only upon Zelaya.

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